Illinois Cent. R. Co. v. Brown

• Decision Date: 23 April 1896
• Citation: 35 S.W. 560,96 Tenn. 559
• Parties: ILLINOIS CENT. R. CO. v. BROWN.
• Court: Tennessee Supreme Court

35 S.W. 560

96 Tenn. 559

ILLINOIS CENT. R. CO. v. BROWN.

Supreme Court of Tennessee.

April 23, 1896

Appeal from circuit court, Madison county; E. S. Mallory, Special Judge.

Action by Mary G. Brown against the Illinois Central Railroad Company for the alleged killing of her husband through the willful neglect of defendant. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McCorry & Bond, for appellant.

Haynes & Hays and E. L. Bullock, for appellee.

CALDWELL J.

Mary G Brown, the plaintiff below, obtained verdict and judgment for $7,500 against the Illinois Central Railroad Company for the alleged loss and destruction of the life of her husband Alfred W. Brown, by and through the willful neglect of that company, its servants and agents, while he was engaged in its service, as car repairer, near Blandville, in the state of Kentucky. The railroad company has appealed in error.

The bill of exceptions recites that after the plaintiff had introduced her evidence, and the counsel for both sides had addressed the jury, the defendant, before the charge was given, handed to the court a typewritten request, demurring to the evidence, which request is as follows: "Exhibit O. The defendant declines to introduce any proof, and demurs to the proof introduced by the plaintiff, and moves the court to instruct the jury as follows: "The plaintiff having introduced her proof, and the defendant declining to introduce any, but demurs to the plaintiff's evidence that is, the defendant says that, if all the plaintiff proved be true, it does not sustain and support the averments of her declaration, and therefore does not entitle her to recover. This admits to be true all the plaintiff has proved, and leaves no controverted fact to be passed on by you; and the court being of the opinion that, if all the testimony be true (and the court assumes it to be true in every particular), that it would not entitle the plaintiff to recover, the demurrer to the evidence is sustained, and you are instructed to return a verdict for the defendant." D' The trial judge declined to entertain the intended demurrer to the evidence, and delivered a regular charge, wherein he instructed the jury to decide for themselves, from the proof before them, whether or not the plaintiff's husband came to his death by and through the willful neglect of the defendant, its agents or servants.

It is perfectly clear that no error was committed in refusing to entertain defendant's intended demurrer to the evidence. The paper presented as such was not entitled to be regarded in any true sense, as a demurrer to the evidence; for, to say nothing of other obvious imperfections, it was fatally defective in that it did not embody the evidence introduced by the plaintiff, and to which the demurrer was directed. A demurrer to evidence should be reduced to writing, should incorporate the evidence demurred to, and should, in unequivocal terms, admit the entire truthfulness of that evidence, with all legitimate inferences and deductions to be drawn therefrom. Summers v. Railroad Co., 96 Tenn. 459, 35 S.W. 210; Hopkins v. Railway Co., 96 Tenn. 409, 34 S.W. 1029; Bedford v. Ingram, 5 Hayw. 155; 2 Tidd, Prac. 865, 866; 1 Starkie, Ev. 434, 435; 4 Chit. Gen. Prac. 16; 2 Elliott, Gen. Prac. §§ 856, 858, 863; 5 Am. & Eng. Enc. Law, 563; Gibson v. Hunter, 2 H. Bl. 187; Suydam v. Williamson, 20 How. 427; Railway Co. v. Velie, 140 Ill. 61, 29 N.E. 706; Hinote v. Simpson, 17 Fla. 444; Sawyer v. Fitts, 2...